We’re grateful that these brave victims have won a crucial victory in their struggle for justice. When it comes to legal discovery, no judge should ever side with accused predators over alleged victims.

New York’s child sex abuse laws are among the most predator-friendly in the nation. While this ruling is encouraging, it’s still crucial that lawmakers reform the archaic, dangerously-restrictive statute of limitations which lets very few victims expose child molesters in court.

(SNAP, the Survivors Network of those Abused by Priests, is the world's oldest and largest support group for clergy abuse victims. We've been around for 22 years and have more than 9,000 members across the globe. Despite the word "priest" in our title, we have members who were molested by religious figures of all denominations, including nuns, rabbis, bishops, and Protestant ministers. Our website is SNAPnetwork.org)

Ex-Students' Claims of Sex Abuse by Coach Proceed to Discovery
Mark Fass - New York Law Journal - May 28, 2010

Nine former students who claim that Brooklyn's Poly Prep Country Day School engaged in a decades-long cover-up of a sexually abusive football coach have scored a significant victory in their lawsuit against the prestigious, 156-year-old school.

On Tuesday, Eastern District Magistrate Judge Cheryl L. Pollak granted a discovery motion that allows the plaintiffs to depose the school's current and former headmasters and requires the school to turn over personnel files and investigative records regarding the alleged sexual misconduct of the football coach, the now-deceased Philip Foglietta.

In granting the motion, Magistrate Judge Pollak ruled that the former students may pursue an equitable estoppel defense to the school's statute of limitations claim, notwithstanding the tight limits on such defenses under New York state law.

"[I]t is highly likely that defendants have additional information in their possession, particularly given the claim that they conducted an investigation into the charges, which may lead to the discovery of additional information in support of plaintiffs' equitable estoppel argument, including new victims, and additional instances of acts designed to conceal the abuse, or dissuade the filing of the suit," Zimmerman v. Poly Prep Country Day School, 09 cv 4586.

The Eastern District Magistrate decision appears on page 25 of the print edition of today's Law Journal.

The plaintiffs, who include Philip Culhane, a partner with Simpson Thacher & Bartlett in Hong Kong, filed the action in October 2009. A state case was dismissed in 2006 on statute of limitations grounds.

The RICO action alleges that Poly Prep; its present headmaster, David Harman; its former headmaster, William Williams; and several members of the board of trustees, conspired to conceal the sexual abuse of perhaps "hundreds" of students by Mr. Foglietta, who worked as a football coach and physical education teacher from 1966 to 1991. Mr. Foglietta died of cancer in 1998.

The defendants, represented by Jeffrey Kohn of O'Melveny & Myers, filed a motion to dismiss in April, asserting among other defenses the three-year statute of limitations.

The plaintiffs responded to that motion with a discovery request. They contended that the headmasters' depositions and the school's records were necessary to establish that the defendants attempted to conceal the school's knowledge of the alleged abuse and to dissuade the students from filing timely lawsuits and should therefore be barred from asserting the statute of limitations.

The defendants objected to any discovery, contending that the equitable estoppel action was futile. They relied on the seminal 2006 case Zumpano v. Quinn, 6 N.Y.3d 666, in which the New York Court of Appeals declined to apply to toll the statute of limitations in a case involving the alleged sexual abuse of minors.

In Zumpano, Judge Carmen Beauchamp Ciparick wrote that it was "fundamental to the application of equitable estoppel" that parties seeking to invoke the doctrine must first "establish that subsequent and specific actions by defendants somehow kept them from timely bringing suit."

In Tuesday's decision, Magistrate Judge Pollak ruled that the allegations of a cover-up distinguished the present case from Zumpano.

"[I]n contrast to the plaintiffs' failure in Zumpano to allege any specific misrepresentations made to them or any deceptive conduct by the defendants, or any 'new and subsequent acts of wrongdoing' beyond the alleged sexual abuse, plaintiffs in the present action have alleged numerous such facts," the magistrate judge held.

Kevin T. Mulhearn, a Rockland County solo practitioner, represents the plaintiffs. Mr. Mulhearn is a 1982 graduate of Poly Prep and, along with both of his brothers, played football for Mr. Foglietta. Mr. Mulhearn declined to comment.